Dismissed

Ram Pravesh Singh and Ors. v. Sri Indrajit Singh and Ors.

Patna HC9 May 2013SA/261/2011

Case brief

AI extract

What is this about?

In this second appeal, the High Court examined whether a registration entry in the Kaifiat column of a cadestral survey khatiyan establishes title or serves as conclusive proof of rights. The court dismissed the appeal, holding that the presumption attached to such entries is rebuttable and factual findings regarding possession and title must be based on evidence adduced in trial.

What did the court decide?

The second appeal is dismissed as it does not involve a substantial question of law.

Ram Pravesh Singh and Ors. Vs Sri Indrajit Singh and Ors. — Partition | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Second Appeal No.261 of 2011

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Ram Pravesh Singh 2. Sita Ram Singh S/o Late Ram Sevak Singh 3. Hari Shankar Singh S/o Late Rajendra Singh, R/o Village, Manguraha, P.S. Tariyani, P.O., Sonbarasa, District-Sheohar.

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Defendant-1^st Party/Respondent 1^st -Appellants.

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Versus

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Sri Indrajit Singh son of Late Ram Badan Singh, R/o vill- Manje Manguraha, P.S. Tariyan, Distt. Sheohar, Sub Registry Sheohar. Plff./Appellant/Resp. 1^st Party.

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Surendra Singh S/o Late Ramchandra Singh 3. Satendra Singh s/o Late Ramehandar Singh 4. Umashankar Singh S/o Late Rajendra Singh 5. Ramashankar Singh S/o Late Rajendra Singh R/o-Village- Manguraha, P.O.Sonbarsa, P.S.-Tariyani, Distt. Sheohar.

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…..Defdt. IInd Party/Respdt. IInd / Resp. IInd Party.

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.... .... Respondent/s

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=========================================================== Appearance :

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For the Appellant/s : Mr. Surendra Kishore Thakur Mr. Alok Kumar Jha For the Respondent/s : Mr. Shiv Shankar Sharma

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=========================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN

SINGH

C.A.V. ORDER

Date: 09-05-2013

The present second appeal has been preferred under Section 100 of the Code of Civil Procedure (hereinafter referred to as the „Code‟) against the judgment and decree dated 21.02.2008 and 04.02.2008 respectively, passed by the learned Additional District Judge, F.T.C.-I, Sheohar at Sitamarhi in T.A. No. 1/06/8/07 whereby he has reversed the judgment and decree dated 30.11.2005 and 16.12.2005 respectively, passed by learned Munsif, Sheohar in T.S. No. 24/1999 whereby the plaintiff‟s suit was dismissed. The defendants are the appellants herein.

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The plaintiff filed the title suit for declaration of title and confirmation of possession over the Schedule-1 property. The relief was subsequently amended seeking delivery of possession also, after having been dispossessed from the suit property. The suit property is situated at village Manguraha. The plaintiff claimed that he purchased the suit property through the registered sale deed dated 21.03.1998 executed by the heirs of Jatahu Sah. Briefly stated the plaintiff‟s case was that Cadestral Survey Plot No. 324, admeasuring 5 decimal under Khata No. 14 and Cadestral Survey Plot No. 323 under Khata No. 27 was entered in the name of Nakchhed Sah and Motiram Sah respectively. It will be beneficial to have a look at the genealogical table of the family of the vendors of the plaintiff as alleged in the plaint which is being taken from the impugned judgment of the First Appellate Court at page-2:-

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As per plaintiff‟s case Rijhan Sah was the Khatiyani Raiyat who had two sons Jhaman Sah and Garabhu Sah. Jhaman Sah had one son Motiram Sah, Motiram Sah had also one son Langar Sah, Langar Sah too had one son, namely, Jatahau Sah, Jatahu Sah had three sons Manful Sah, Ghutuk Sah and Ramdeo Sah. Manful had one son, Parashuram Sah and Ghutuk Sah had also one son Dahaur Sah. The second son of Rijhan Sah, namely, Garabhu Sah also had one son Nakchhed Sah, Nakchhed Sah had also one son namely, Dayal Sah and Dayal Sah also had one son Dilchand Sah. According to the plaintiff Dilchand Sah died issueless prior to the revisional survey.

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Further case of the plaintiff before the Trial Court was that from old Khata No. 323, new Khesra No. 474 about 5 decimals in area was carved out in new survey and old Khata No. 324, new Khesra 475, area 6 decimal was carved out and was recorded in new survey Khatiyan over which Nakchhed Sah and Motiram Sah came in possession. It was also pleaded that Manful Sah and sons of Motiram Sah used to live in the house situated on about 7 decimal of land of Khesra No. 323. It was further pleaded that Dilchand Sah and Manful Sah were living in the house situated on old Khesra No. 324, area about 6 decimal. The plaintiffs claimed that in the west of new Khesra No. 474 and 475 and new Khesra No. 479 was carved out over which

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the plaintiff resided but due to wrong survey entry, the possession was shown in the name of Manful Sah and Dilchand Sah though they had no concern over the land.

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The plaintiff claimed that in new survey Khatiyan in the concerned Khesra, area of the land was 12 decimal but 11 decimal was wrongly mentioned in the survey Khatiyan.

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The specific case of the plaintiff before the Trial Court was that Parashuram Sah, son of Manful Sah, Dahaur Sah and Ramdeo Sah sold the above land through registered sale deed dated 21.03.1998 for valuable consideration money of Rs. 6, 000/- and handed over the possession to them immediately thereafter.

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The plaintiffs asserted that the defendant 1^st party knowingly and deliberately registered three sale deeds in favour of Surendra Prasad Singh, defendant No. 3 / Respondent No. 2 on 13.03.1997 ( 1 Katha 5 ½ dhurs), on 25.11.1997 (10 Dhurs) and on 15.01.1998 (10 Dhurs). The plaintiff contended that the sale deeds were forged and fabricated documents and on the basis of sale deed respondents never came in possession.

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Defendants appeared before the Trial Court and contested the suit by filing written statement. It appears that after the written statements were filed on behalf of the defendants No. 1 and 2 as also 3, 4, and 7, in course of trial suit was dismissed due to absence of the

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parties on 25.06.2002. The suit was, however, restored after filing miscellaneous case No. 13 of 2002. Thereafter, the defendants did not appear and accordingly the suit was heard ex-parte.

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The defendants disputed in their written statement the genealogical table. Disputing the plaintiff‟s assertion that Dilchand Sah had three daughters namely, Maheshwari Devi, Kaushalya Devi and Sushila Devi who were married and they were deliberately not impleaded party in the suit, the defendants took the plea of nonmaintainability of the suit on the ground of non-joinder of necessary parties. The defendants denied the assertion made in the plaint and claimed that the old survey No. 324 was recorded in the name of Nakchhed Sah son of Garabhu Sah and old survey No. 323 was recorded in the name of Motiram Sah son of Jhaman Sah but they were living jointly and after that Nakchhed Sah and Motiram Sah divided shares through mutual partition and got their respective shares and that they had been living separately. The defendants claimed that in survey Khatiyan, they were recorded separately. They further developed a case that about 75 years ago, recorded tenant Langar Sah sold his share to the respondents by oral sale on consideration of Rs. 40/- only. Similarly, the other recorded defendant, namely, Dayal Sah also sold his share of property to the defendant for consideration of Rs. 40/- by way of oral sale. Since then, according to the defendants, they have

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been coming in continuous possession over the suit property.

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According to them, Jatahu Sah died prior to revisional survey and sons of Jatahu Sah, namely, Manful Sah and Ghutuk Sah also died. They contended that in the revisional survey, the land was recorded in the name of Dilchand Sah in „Kaifiat‟ column. Though the defendants admitted that in new survey Khatiyan in column of „Kaifiat‟ (remark), the names of Manful Sah and Dilchand Sah were recorded, they pleaded that it was false to say that the plaintiff purchased the land from the heirs of the Manful Sah and Dilchand Sah. On the basis of the pleadings of the parties, the Trial Court framed 9 issues including the main issue i.e. the Issue No. V on the question of title of the plaintiff over the suit land. Learned Trial Court on the basis of the pleadings and evidence on record came to the finding that on the basis of the sale deed dated 21.03.1998, the plaintiff did not acquire any title and in spite of their being entry in the revisional survey in „Kaifiat‟ column, the plaintiff could not prove the title of his vendor over the suit property.

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Learned First Appellate Court on the basis of the grounds taken on behalf of the plaintiff / appellant as well as on the basis of the evidence available on record, formulated two points for consideration:-

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“A. Whether plaintiff / appellant got title to the suit land, story of possession of the plaintiff / appellant and dispossession set up by the plaintiff / appellant is true and plaintiff/appellant is

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entitled for decree of declaration on the title and recovery of possession.

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B. Whether the plaintiff has got any cause of action for the suit, whether the suit is bad for non-joinder of the parties and whether the suit as framed legally maintainable?”

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This is to be noted that the defendant 1^st party and 2^nd party did not appear before the Trial Court and the issues framed by the Trial Court were decided on the basis of written statement filed by the parties.

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Learned First Appellate Court allowed the appeal and decreed the suit in favour of the plaintiff after holding that the plaintiff had taken sale deed from the legal heirs of recorded tenant of cadestral survey khatiyan and after that the plaintiff exercised his right, title and possession over the schedule-1 of the plaint. Learned First Appellate Court held that entry in the revisional survey Khatiyan cannot create title in favour of the defendant though such entry may have presumptive value. This is to be kept in mind that defendants did not appear to adduce evidence and, therefore, there was no evidence before the Trial Court to prove the story of oral sale in favour of the ancestors of the vendors of the defendants.

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The only question, which learned counsel for the appellants has raised in the present Second Appeal in order to submit that it involved substantial question of law is as to whether the entry of names in the „Kaifiat‟ column of cadestral survey khatiyan can be the

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basis to hold title of the plaintiff‟s vendor.

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This is to be noted that there was one crucial question before the Courts below on the point of possession / dispossession of the plaintiff over the suit land. The plaintiff pleaded that on 31.03.2000, during the pendency of the suit respondent / defendant dispossessed the plaintiff and constructed thatched house. Learned First Appellate Court on the basis of evidence of the plaintiff witnesses, came to a finding in favour of the plaintiff that he was in possession over the suit land at the time of filing of this suit and was dispossessed.

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Learned First Appellate Court also came to a finding that the defendants did not file chit of paper nor any document to prove that they had orally taken the land of Schedule-1 from the recorded tenant of Schedule-1 land nor any witness came forward to prove this fact. The story of oral purchase as developed by the defendant could not be proved. Learned First Appellate Court accordingly held that petitioner had valid right, title and interest over the property and was also entitled for possession. Declaration of title in favour of plaintiff/respondent 1^st party by the first appellate Court is based on analysis of evidence adduced by the plaintiff/respondent in course of trial.

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Mr. Surendra Kishore Thakur, learned counsel for the appellants has placed reliance on a Division Bench Judgment of this

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Court reported in 2011(2) P.L.J.R. 877 (Bhupal Singh & Ors. V. Ganesh Ahir & Ors.) so as to contend that the defendants could not question the entry made in revisional survey khatiyan without filing a suit under Section 106 of the Bihar Tenancy Act. He contended that the revisional survey entry made after due enquiry attained finality which could not be brushed aside.

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Reliance placed by Mr. Thakur on the judgment of this Court in case of Bhupal Singh & Ors. V. Ganesh Ahir & Ors. (supra) is correct to the extent that there is always a presumption of correctness of record rights, but such presumption is rebuttable. It is well settled that record of rights is not a document of title nor conclusive proof of rights. Once an entry has been made, there would be statutory prima facie presumption of correctness attached to the record of rights as has been held in case of Bhupal Singh & Ors. V. Ganesh Ahir & Ors. (supra) by this Court in paragraph-15 of the judgment. Such presumption is, at the same time rebuttable. Once such presumption is rebutted, the Court in a title suit has to decide the question of title on the basis of evidence adduced in course of trial. Secondly, this Court in case of Bhupal Singh & Ors. V. Ganesh Ahir & Ors. (supra) reappraised the evidence on record so as to come to a conclusion that the claim of the plaintiff/ appellants of that case deserved to fail. This Court in case of Bhupal Singh & Ors. V. Ganesh

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Ahir & Ors. (supra) did not uphold the dismissal of suit by first appellate Court on the sole basis that as the entry in the records of rights had attained finality, the appellant could not question the same. In the present case, on the basis of evidence learned first appellate Court came to a finding that defendant could not prove his possession over the suit land nor any witness came forward to prove this fact. He also came to a finding that story of oral purchase as developed by the defendant could not be proved. Learned first appellate Court also concluded on the basis of evidence that the plaintiff / respondent was dispossessed from the suit land. Such findings of fact by the learned first appellate Court cannot be interfered with unless it is shown to be perverse or contrary to records. Bhupal Singh‟s case (supra) is of no avail for the appellant in the facts and circumstances of the present case. It is not the appellant‟s case that the findings of the first appellate Court are contrary to evidence or in absence of any evidence.

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In view of the above, I find no merit in the present appeal as it doesn‟t involve any substantial question of law and is, accordingly, dismissed.

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(Chakradhari Sharan Singh, J.)

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Saif/-N.A.F.R.

Ram Pravesh Singh and Ors. v. Sri Indrajit Singh and Ors.

Case brief

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Ram Pravesh Singh and Ors. v. Sri Indrajit Singh and Ors.

Case brief

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